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June 24, 2016

Unexpectedly(?), new post-Hurst hydra head takes big bite out of Ohio capital case

Download (1)As regularly readers know, in this post not long after the Supreme Court in Hurst declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term "post-Hurst hydra" to describe what I expected to become multi-headed, snake-like capital litigation as judges tried to make sense of what Hurst must mean for past, present and future cases.  That hydra has been taking various bites out of capital cases most prominently in Alabama and Delaware as well as Florida, but this article from my own local Ohio paper highlights how new heads can pop up in unexpected places.  The article is headlined "Prosecutor: Marion County judge's ruling puts death penalty in jeopardy," and here are the interesting details:

A Marion County judge this week dropped the death penalty elements from a convicted murderer-rapist's sentence on the grounds that there were similarities to a Florida death sentence ruled unconstitutional by the U.S. Supreme Court this year.

Because Florida and Ohio have similar sentencing and procedural guidelines, defense attorneys argued that Maurice A. Mason, sentenced in 1994 for raping and beating to death Robin Dennis, then 19 and pregnant, should not be executed.

The case could have implications in other capital cases in Ohio, said Marion County Prosecutor Brent Yager, who disagreed with Monday's decision by Marion Common Pleas Court Judge William Finnegan. "I was surprised," said Yager. "I believe that there is a distinction between the death penalty in Florida and in Ohio."...

Finnegan, in his ruling, wrote that the Hurst decision makes clear that the Sixth Amendment requires juries make specific findings to authorize the death penalty.  Ohio, he wrote, "has no provision for the jury to make specific findings related to the weighing of aggravating and mitigating factors," and thus is unconstitutional.

Yager said Ohio differs from Florida because juries here directly decide the aggravating circumstances in a capital case used in the penalty phase and sentencing, although judge's have the ability to commute the death sentence in lieu of life in prison....  Yager said the ruling is frustrating, in part because victim families and lawmakers expect swift and certain justice.

"Ohio and the state legislature have decided we still should have a death penalty in Ohio," said Yager. "But based on the judge's ruling here, if this stands, our death penalty would be unconstitutional. This decision does become a statewide issue." Yager said he plans to file an appeal with the Third Circuit Court of Appeals in Lima.

Mason's attorney, Kort Gatterdam, said the decision should "withstand scrutiny from higher courts and will become the law of this state ... and could become the basis to eliminate the death penalty in Ohio."...

Mason, now 52, has been moved from death row to a regular cell at the Mansfield Correctional Institution. With no sentence on record for the murder conviction, he technically is eligible for a parole hearing. But the Ohio Department of Rehabilitation and Correction and the parole board have said that won't happen his ultimate sentence for murder is resolved.

Not long after SCOTUS ruled in Hurst, a very smart and savvy local lawyer told me that he thought a strong argument could be made that Ohio's capital sentencing scheme has Hurst problems. Apparently, at least one state trial judge agrees, and it will be very interesting to watch the certain appeal of this ruling in the state courts as well as whether this ruling echoes through lots and lots of other Ohio capital cases past and present.

The full 50-page ruling in Ohio v. Mason, No. 93CR1053 (Ohio Common Pleas Ct. June 20, 2016), is available at this link. I have not yet had a chance to read the opinion, but I think it surely is a must-read for capital litigators of all stripes in Ohio and elsewhere.

June 24, 2016 at 05:19 PM | Permalink

Comments

I believe the Judge got it wrong and there is no Sixth Amendment problem with respect to who weighs aggravating and mitigating factors. The only thing that the Sixth Amendment requires to be determined by a jury is the single offense characteristic fact which increases the potential punishment from life to a possible death sentence. As Justice Scalia said in Ring, once that finding is made by the jury states are free to provide for judges to make the ultimate decision as to life or death.

At its core, Apprendi prohibits a bench trial for a greater offense following a jury trial for a lesser offense. It doesn't seem to me that Ohio is doing that.

bruce

Posted by: bruce cunningham | Jun 26, 2016 1:33:44 AM

I generally share your view, bruce, and I would bet other Ohio courts do the same. That said, I do think there is something to the notion that, as the law is defined in Ohio and perhaps other states, the conclusion in a particular case that aggravators outweigh the mitigators is itself an addition factual finding that must be made by a jury under the Sixth Amendment for a defendant to be death eligible.

Imagine if the capital law was understood to require sentencing authority to (1) find that the aggravators outweigh the mitigators, and then (2) decide that the nature of any mitigators do not justify the exercise of mercy. In operation, I think the Sixth Amendment would require that function #1 involve a jury determination, but not function #2.

Posted by: Doug B. | Jun 26, 2016 9:29:54 AM

In a lot of states, the defense bar has tried to raise this issue after Apprendi. So far, most of the state appellate courts and federal circuits (on habeas review) have rejected this claim. I don't see anything in Hurst that changes this analysis especially in light of the discussion in the various Kansas cases. The jury expresses its weighing in the ultimate verdict.

Posted by: tmm | Jun 26, 2016 7:20:38 PM

In a lot of states, the defense bar has tried to raise this issue after Apprendi. So far, most of the state appellate courts and federal circuits (on habeas review) have rejected this claim. I don't see anything in Hurst that changes this analysis especially in light of the discussion in the various Kansas cases. The jury expresses its weighing in the ultimate verdict.

Posted by: tmm | Jun 26, 2016 7:20:39 PM

tmm, I am confused by the statement "the jury expresses its weighing in the ultimate verdict."

Scalia makes it clear that the Sixth Amendment does not bestow on the jury the power to make the ultimate decision of life or death. "weighing" is not involved in deciding which crime a def is guilty of, including a crime which carries a potential death sentence. Once they decide the question of whether a def is guilty of a crime, and if so which one, which does not involve weighing anything, their job is done. Toward the end of Scalia's concurrence in Ring, he makes that crystal clear.

bruce

Posted by: bruce cunningham | Jun 27, 2016 12:12:02 AM

Under the view of the Sixth Amendment that both of us apparently believe the Supreme Court is currently taking, states do not have to give the jury any role in the death penalty after the finding of statutory aggravators.

If -- as the defendants in these cases are arguing -- a jury must find that aggravators outweigh mitigators (or at least as noted in the Marsh case that mitigators do not outweigh aggravators), my suggestion is that -- because the typical instructions to the jury tell them that they can't impose a death penalty without making that finding -- the finding that they think is required is implicit in the verdict of death and does not require an express finding.

Posted by: tmm | Jun 27, 2016 11:11:50 AM

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